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In re M.S.

June 12, 2009


(Solano County Super. Ct. No. J37653). Honorable Robert C. Fracchia.

The opinion of the court was delivered by: Margulies, J.


M.S. admitted two counts of a Welfare and Institutions Code*fn1 section 602 petition alleging violations of Penal Code section 245, subdivision (a)(1), and criminal street gang allegations pursuant to Penal Code section 186.22, subdivision (b)(1). After determining that the assaults were felonies, the court committed the minor to the Division of Juvenile Justice (DJJ), and set the maximum period of confinement at 10 years 6 months. The court also ordered gang registration pursuant to Penal Code section 186.30.

The minor contends the court violated the Americans with Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.), by committing him to the DJJ instead of a less restrictive placement because the minor has diabetes. He further contends the court violated his due process rights by considering his diabetes as a factor in selecting the appropriate placement.

We hold the court did not abuse its discretion by committing the minor to the DJJ. The claimed ADA violation is not cognizable in the context of this appeal as grounds for reversal of an otherwise valid dispositional order. We also hold the dispositional order did not violate due process, and affirm the order.


A. The Current Petition*fn2

On June 19, 2008, a group of 20 to 25 males and females playing hide and seek at an elementary school were approached by a group of males in a car asking if they "needed something." The hide and seek players interpreted the inquiry as an offer of drugs for sale and said they did not want anything. Words were exchanged and, within minutes, a group of 12 to 15 males, wearing red and armed with rocks, bats, bottles, and wooden sticks with nails sticking out, began to attack. The armed group, including the minor, yelled "Norte" as they attacked. One of the victims was stabbed in the lower back. Another victim was hit in the shoulder with a bottle, and a third victim suffered a contusion and two-inch laceration to his head. Several more also suffered injuries and were treated at the scene.

A short while later, the police located the car driven by some of the attackers outside a nearby home. Defendant, a "known member of the Norteno criminal street gang," was inside the house with several other known gang members. The police found a large amount of marijuana in the house, and a knife with dried red fluid on it in the front yard.

B. Prior Petitions

The original 602 petition, filed on June 12, 2007, alleged that the minor, then age 14, obstructed a teacher and committed two misdemeanor batteries. It also alleged that one of the batteries was committed for the benefit of a criminal street gang. The minor admitted one count of battery and threatening a public officer. The street gang allegation was dismissed.

The dispositional study noted that the minor had failed nearly every class during the preceding two years and his truancy was so severe he had been referred to the School Attendance Review Board. According to the minor, his absences were caused primarily by complications related to his diagnosed diabetes. He was receiving special education services and had an Individualized Education Program (IEP). The minor also acknowledged that he used marijuana to alleviate depression. On August 22, 2007, the court adjudged the minor a ward of the court and placed him on probation subject to no weapons and no gang association conditions, and ordered individual and family counseling.

On November 27, 2007, a subsequent petition alleged that on September 28, 2007, defendant carried a dirk or dagger for the benefit of a criminal street gang (count one), carried a switchblade knife for the benefit of a criminal street gang (count two), and on November 22, 2007, again carried a dirk or dagger (count three). He admitted count one, and the court dismissed the remaining counts and enhancements. The court deemed count one to be a felony.

The dispositional study reported that the minor had not made any progress on probation. He had only attended school two days in the fall semester. He had not attended the required drug, alcohol, and family counseling, nor had he completed any of the required community service hours, or written a court mandated letter of apology and essay. The minor's father believed his son's behavioral problems were related to depression caused, in part, by the diagnosis of diabetes he received at age 11.

On January 3, 2008, the court continued the wardship and referred the minor to the Repeat Offender Prevention Program (ROPP) for intensive supervision. The probation conditions included a proscription against possession of weapons, a curfew, gang conditions, and a stay away order naming several individuals.

Little more than a month later, on February 6, 2008, the probation officer filed a section 777 probation violation notice alleging that the minor had not attended school and had violated his curfew. On February 13, 2008, the minor admitted the probation violation and the court placed him on home electronic monitoring. He attended school on February 14. On February 20, he returned to school after a holiday but was two and a half hours late and threatened another student.

The minor's father reported to the probation officer that the minor was out of control. The father had "talked to the minor's doctors regarding his health issues, and the doctors informed him that not everyone conforms to treatment appropriately. The minor's health issues stem from the minor's unwillingness to accept that he has diabetes and treat it appropriately. [The father] says he has tried to take control of the minor's treatment, however the minor, at times, refuses to take his insulin shots. [The father] stated [he] has gone so far as to give the minor his shot when he is sleeping, however, this action is also dangerous for the minor. Neither the minor's father nor his doctors have devised a treatment plan that the minor has followed appropriately.... [The father] believes the minor needs therapy to learn how to accept his illness and treat it appropriately." The report noted that the minor "has had the opportunity to ...

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